Rules & Regulations

Dear Ms. Grundmann:

The United States Capitol Police, Office of the General Counsel hereby submit the following comments in accordance with section 303(b) of the Congressional Accountability Act (“CAA” or the “Act”) regarding the Office of Congressional Workplace Rights (“OCWR”) Notice of Proposed Rulemaking (“Notice”) concerning Amendments to the OCWR Rules of Procedure. The Notice was published in the Congressional Record on April 9, 2019.

A. PROCEDURAL RULES INCONSISTENT WITH THE CAA AND IN EXCESS OF THE OCWR’S AUTHORITY UNDER THE ACT

As an initial matter, the OCWR has no authority under section 303 of the CAA to promulgate substantive requirements under the guise of procedural rules that are inconsistent with the mandates of the Act. Any such rule is invalid and void and must be deleted from the OCWR Rules of Procedure.

The following procedural rules proposed by the OCWR contradict the provisions of the CAA and should be deleted:

• § 9.01(c) Arbitration Awards.

Section 9.01(c) provides that “[i]n arbitration proceedings, the prevailing party must submit any request for attorney’s fees and costs to the arbitrator in accordance with the established arbitration procedures.”

Section 225 of the CAA, expressly sets forth to whom attorney’s fees and/or costs may be awarded and the requisite conditions of such an award. Specifically, section 225 provides:

If a covered employee, with respect to any claim under this chapter, or a qualified person with a disability, with respect to any claim under section 1331 of this title, is a prevailing party in any proceeding under section 1405,1406, 1407, or 1408 of this title, the hearing officer, Board, or court, as the case may be, may award attorney’s fees, expert fees, and any other costs as would be appropriate if awarded under section 2000e-5(k) of title 42.

2 U.S.C. § 1361(a).

The OCWR’s proposed rule conflicts with section 225 because it permits the award of attorney’s fees and costs in a proceeding other than those described under section 1405,1406,1407, or 1408 of this title.